Durham, N.C. — Defense attorneys in the Duke lacrosse case Thursday cited mounting evidence for their argument that the judge handling the case should throw out the accuser's identification of the suspects.

The lawyers filed a new motion in which they say that what allegedly happened inside the house at 610 N. Buchanan Blvd. keeps changing.

The defense claims the woman told an investigator for the prosecution on Dec. 21 that the reported attack happened between 11:35 p.m. and midnight on March 13.

The defense goes on to say the claim contradicts the accuser's own cellular phone records, which show an incoming call at 11:36 p.m. and that someone stayed on the line for three minutes.

Records also show that Reade Seligmann received a call on his cell phone during that period, the defense said.

Time-stamped photos and records of a 911 call made by the second dancer also indicate the women did not leave the party until shortly before 1 a.m., nearly an hour after the most recent account has the alleged attack ending.

In an April written statement, the accuser said she and the second dancer left the party immediately after the alleged assault.

In her latest statement, according to the defense, the accuser says Seligmann did not commit any sex act on her. Although he was repeatedly urged to take part in the alleged attack, she recalled, he said he could not participate because he was getting married.

Lawyers have said Seligmann has a girlfriend, but there has been no indication that he was engaged or married.

The documents point out that in an April interview with police, the woman cited Seligmann as the attacker who she says stood in front of her and forced her to perform a sexual act.

"The accuser's most recent recollection of events demonstrates clearly that she cannot accurately recall and describe her attackers and that any identification made by her is necessarily unreliable," the defense filing said.

The defense also claims the woman now says the attacker she identified as David Evans did not have a mustache after all. In an April photo lineup, she told detectives he did.

On Dec. 21, according to the motion, the accuser said she did not mean a "real mustache" but something more like a "5-o'clock shadow."

The motion includes Evans' lineup photo of him with a "5-o'clock shadow."

"Thus, since Dave Evans had a '5-o'clock shadow' in the picture the accuser was shown on April 4, and since her response was that he 'looks like him without the mustache,' her claim now that a 'mustache' is not a 'mustache' indicates that her statement … is not longer reliable," attorneys say.

In that same interview, the accuser also said she was no longer certain she had been penetrated vaginally by a penis, a necessary element of rape charges in North Carolina.

That led Durham County District Attorney Mike Nifong to dismiss rape charges against Seligmann, Evans and Collin Finnerty.

The three defendants, who have maintained their innocence in the case, remain charged with sexual offense and kidnapping.

An assistant for Nifong told WRAL Thursday that the district attorney was not taking phone calls.

Former prosecutor Dan Boyce said Thursday's motion hurts the prosecution's case and the accuser's credibility. Her credibility would be challenged significantly if the case goes to trial, he said.

"It seems like we have had thing after thing pop up in this, and this latest is certainly a big issue because you have a prior statement — a statement that will be used — that may be inconsistent with earlier statements."

Thursday's filing was a supplement to a previous defense motion asking a judge to toss out the photo lineup in which the accuser identified the three suspects.

A hearing on the request is scheduled for Feb. 5, and experts have said that without the photo lineup, Nifong would probably have to drop the case.

Boyce said he would not be surprised if the case never goes to trial.

"As I look at it right now, because of changes in description of the identification, changes in the time line and changes in the events — what did or did not occur — the prosecution has some weighty decisions to make about whether to go forward with the case," he said.

bonnieborchertJan 12, 2007

You made my day- I laughed so hard I thought I might wet myself. First you talk about "grouping" blacks together and that is the reason they need "help". Yet you grouped "whites" togegther using their parents money?? So- all white people have money and all black people do not???

Come on- no one owes anyone anything. I am so sick of people not taking responsibility for their actions. It is becoming more and more apparent that this woman lied about the entire night- maybe she grouped the whites together as well and saw money- maybe she decided that she would like some of the white people's money....

Tired of thoughtlessnessJan 12, 2007

"First of all, I don't understand why the NAACP and Rev. Jessie Jackson had to get involved when all of this came forward. Whites don't have anyone spking for them and fighting their battles so why can't the african americans handle their own battles. Iam not racist, I just believe in everyone handling their own battles." For you to group all "African Americans" together asking why they dont fight their own battles, tell why we need extra help. No, "whites" dont have anyone fighting their battles, but these students had their parent's money.

ktncnnJan 12, 2007

BRAVO sanburn28! I was thinking the same thing and didn't quite know how to put it. Everything these days becomes a racial issue, who cares the color of someone's skin color? I am white but have just as many black friends (if not more) as I do white. I don't care the color of your skin, I choose to like you or not for what's inside. Your color doesn't make you a bad person, you choose what you want to do whether it's bad or good. The stripper happened to be a black woman accusing white young men but noone made her strip for a living. If you are paid to dance and want to get paid then you do what you are hired to do. Sounds to me like she went in drunk and couldn't dance so she wasn't going to get paid and got pissed. pl_randolph seems to have big time chip on his/her shoulder not to mention sounding like a racist pig. If I were him/her, I would be feeling pretty stupid and about as big as an ant.

AuntySocialJan 12, 2007

Hasn't this gone on long enough? Come on, stop it already. Another day, another story. People all over the world are reading and hearing about this. Miss Thang is making our whole state look stupid. We've all been Nifonged.

sanburn28Jan 12, 2007

First of all, I don't understand why the NAACP and Rev. Jessie Jackson had to get involved when all of this came forward. Whites don't have anyone spking for them and fighting their battles so why can't the african americans handle their own battles. I am not racist, I just believe in everyone handling their own battles. On that note, where is the NAACP & Rev. Jessie Jackson now that the new evidence has come forward??? The girl can't keep her story straight and hasn't been able to from the beginning. Just look at the evidence and it speaks for itself. Also, remember where the 2nd dancer was interviewed and said the other dancer wasn't even raped. Yeah, I bet you could say they are being paid off but the evidence is speaking the truth and showing she is nothing but a lier. Justice will be served. She needs to be held accountable for her actions and needs to be charged for false accusations. Just remember, "God don't like ugly!!!!

deerslayerJan 12, 2007

Do the math; Booze + strippers + hormones = 1 big mess!!!!! Put an end to it and teach our children better....

Low VoltageJan 11, 2007

mjblawlady is right, this whole thing was for Nifong to be re-elected. He had lots of free campaign time, good grief! This man is spending tax dollars for absolutely no reason except for his own agenda. Now that it's backfiring, should he not be held accountable? (not to mention the accuser.)

lcraciumJan 11, 2007

I said 4 weeks ago that it would cost the city of Durham 3 million dollars per player plus an additional 3 million for lawyers and court costs! I stand by that estimate as we have already seen the first counter suit! How can anyone believe a deprived and again I say Deprived young woman! It's not her fault but I think she should withdraw the accusations! For her children's benefit! It will still cost Nifong and the City of Durham 9 million dollar!

crashJan 11, 2007

I think this whole thing is sad enough. If this girl was indeed raped then yes people need to be accountable for their actions and put in jail. If this girl lied, then she needs to be accountable for her actions as well. But what worries me is if another women is ganged raped no one will believe her she will always be the victim because they will think she made it all up. Things like this hurt women in the long run no matter what color they are or their background. Recently in the news we have had young girls say they were abducted when in fact they were not. This makes it very difficult for those women/girls who are raped, abused and beaten and abducted. We need to look at the long term ramifications of this case. I was not there, I do not know what went on, but I just wish this case will get to court. With any high profile case there is always rumors and rumors of rumors some made to fuel the fire and keep it going.

roxannaswebJan 11, 2007

JUSTICE.... SERVED... HARDLY... Justice will be served when this case has been dismissed, and the accuser is held accountable for the damage she has done...